State's gay marriage ban unlawful, Alvarez says

In 'unusual' turn, Cook County state's attorney supports lawsuits questioning constitutionality of law

Cook County State's Attorney Anita Alvarez, center, and Clerk David Orr, left, hold a press conference at Daley Center in Chicago to discuss the filing of a legal answer in the civil lawsuit that has been brought against the clerk alleging that not issuing marriage licenses to same sex couples violates the equal protection and due process clauses of the Illinois Constitution. (Zbigniew Bzdak, Chicago Tribune)

The fight for same-sex marriage rights in Illinois took an unprecedented turn Thursday as Cook County State's Attorney Anita Alvarez conceded that the state's ban on gay marriage violates the Illinois Constitution, essentially agreeing with a pair of lawsuits her office was expected to oppose.

It marks the first time a state has refused to contest a lawsuit questioning the constitutionality of a gay marriage ban.

"I've never encountered this before," said Camilla Taylor, an attorney with the gay rights group Lambda Legal, which filed one of the lawsuits last month. "We've really reached the tipping point, and now the government of Illinois refuses to defend the law because it's indefensible."

The Illinois attorney general's office, which would be next in line to defend the state's constitution, already had announced plans to file a brief in support of the lawsuits brought by Lambda Legal and the American Civil Liberties Union of Illinois.

Gov. Pat Quinn has expressed his support for gay marriage, and even Cook County Clerk David Orr — who was sued in the litigation — applauded the lawsuits.

On Thursday, Alvarez's office stepped aside as well, saying the ban on gay marriage is unconstitutional and leaving any defense of the state's marriage laws to outside groups who will have to petition Cook County Circuit Court and prove they have legal standing.

"This makes it clear that lawsuit was an inside job from the beginning, a crass political move to force same-sex marriage on all Illinoisans without providing residents of the other 101 counties an opportunity to be heard," said Peter Breen, president and chief counsel of the Chicago-based Thomas More Society, which opposes same-sex marriage.

The society, a public interest law firm that defends conservative social values, is preparing legal papers to allow the group to defend the ban in court, Breen said.

The next step in the legal process comes Thursday, when a motion to combine the two lawsuits will be heard by Judge Moshe Jacobius, presiding judge of the county's chancery division.

The state's attorney's response to the two lawsuits said the county clerk "admits the inequity and tangible harm done to same-sex couples who are denied access to civil marriage licenses." It also said the clerk "admits that the inability to receive a marriage license violates Plaintiffs' right to equal protection of the laws by discriminating impermissibly on the basis of sexual orientation and sex."

Orr said Thursday that he believes the state's ban on same-sex marriage is akin to laws that once banned mixed-race couples from marrying.

"Government should not be discriminating against people," Orr said at a news conference with Alvarez. "History will show this is the right direction."

Alvarez's chief of staff, Dan Kirk, said that when the suits were filed, Alvarez met with her team over a series of days to weigh options. Though the eight staff members tasked with the issue were unanimous in their belief that the state's gay marriage ban violated the equal protection clause, they had differing views on how to best represent the clerk's interests in court, he said.

In the end, Alvarez decided that the simplest approach would be to file a legal response to the lawsuits that agreed with the plaintiffs' claims that the state's law was unconstitutional.

Alvarez, who is Catholic, did not confer with any religious leaders or outside interests before making her decision, Kirk said.

Alvarez acknowledged it was an "unusual" position Thursday but said she was comfortable with her stance.

"We do believe the equal protection clause of the Illinois Constitution is just that. It protects everybody equally," she said.

Taylor, the Lambda Legal attorney, said she did not anticipate the state's attorney's supportive response but found it gratifying. As far as an outside group coming in to fight the lawsuits, Taylor said she "can't imagine a party who would have standing to intervene in a lawsuit like this."

"However, what we're dealing with is unprecedented," she added. "There's a need for the adversarial process to work. We filed these lawsuits because we were confident we could win, so we look forward to taking on the Thomas More Society or any other group that wants to defend it."

Though it is impossible to predict how a court will rule, experts said it will be hard for the judge to ignore the fact that no local or state officials are willing to stand up for the current ban.

"If residents of the state have filed a lawsuit saying the law is unconstitutional and government officials are saying that it's unconstitutional in response, then there's every reason to believe that the courts will agree," said John D'Emilio, an expert on sexuality and public policy at the University of Illinois at Chicago.

Robert Gilligan, executive director of the Catholic Conference of Illinois, said he was taken aback by the state's attorney's decision.